Moeke v Raukawa Iwi Development Limited
[2023] NZHC 7
•1 February 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV-2019-463-46
[2023] NZHC 7
BETWEEN FORD BENJAMIN MOEKE
Plaintiff
AND
RAUKAWA IWI DEVELOPMENT LIMITED
First Defendant
SOUTH WAIKATO DISTRICT COUNCIL
Second Defendant
Hearing: On the papers Appearances:
Ken J Patterson for the Plaintiff
Richard B Fowler KC/Hamish Douch for the First Defendant Kate Cornege/Megan Crockett for the Second Defendant
James Gurnick/David Nielsen for the Fourth and Fifth Defendants
Judgment:
1 February 2023
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[application for joinder]
This judgment was delivered by me on 1 February 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
…………………………. Registrar/Deputy Registrar
Solicitors:
Ken J Patterson, Tauranga, for the Plaintiff
Mortlock McCormack Law (Hamish Douch), Christchurch, for the First Defendant Tompkins Wake (Kate Cornegé / Megan Crockett) Hamilton, for the Second Defendant Nielsen Law (David Nielsen), Hamilton, for the (Proposed) Fourth and Fifth Defendants
Counsel:
Richard B Fowler KC, Wellington, for the First Defendant
FORD BENJAMIN MOEKE v RAUKAWA IWI DEVELOPMENT LIMITED [2023] NZHC 7 [1 February 2023]
[1] The plaintiff in this proceeding, Ford Benjamin Moeke (Mr Moeke), made an application for joinder dated 13 April 2022, seeking to join the following parties as defendants:
(a)the directors of the first defendant, Raukawa Iwi Development Limited (Raukawa), as third defendants;
(b)the Mayor and a number of other councillors of the second defendant, the South Waikato District Council (the Council), as fourth defendants;
(c)Mr Smit, the former Chief Executive of the Council, as the fifth defendant;
(d)Mr Hamish Douch, the solicitor for Raukawa, as the sixth defendant;
(e)Mr Mike Bracken, the solicitor for the Council, as the seventh defendant.
[2] At the time of filing the joinder application, the plaintiff also indicated that he proposes to file a second amended statement of claim which seeks the following relief:
(a)against all the defendants, jointly and severally, general damages in the sum of $1,000,000;
(b)against all the defendants, jointly and severally, special damages of
$3,500;
(c)against each of the first and third defendants severally, exemplary damages of $15,000;
(d)against each of the second, fourth and fifth defendants severally, exemplary damages of $25,000;
(e)against each of the sixth and seventh defendants severally, exemplary damages of $50,000.
[3] Raukawa filed a notice of opposition dated 9 May 2022, the Council filed a notice of opposition dated 5 May 2022, some but not all of the proposed fourth defendants filed a notice of opposition dated 13 June 2022, and the proposed fifth defendant filed a notice of opposition dated 13 June 2022. No notices of opposition were filed by the proposed third defendants, some of the proposed fourth defendants nor the proposed fifth, sixth and seventh defendants.
[4] The plaintiff filed an amended application for joinder dated 6 July 2022. The amended application removed one of the directors of Raukawa proposed as the third defendants, and amended the councillors proposed as fourth defendants.
Background to the proceedings
[5] Mr Moeke commenced these proceedings in May 2019 and sought summary judgment with regard to liability against Raukawa and the Council in relation to a property at 10 Dumfries Road, Tokoroa (the property). Mr Moeke pleaded that Raukawa breached its contract to sell the property to him, by instead selling it to the Council, and that both defendants had conspired to defraud him.
[6] Mr Moeke also registered a caveat against the property. The Council applied for lapse and Mr Moeke brought proceedings against the Council in June 2019 to oppose the lapse of the caveat. Following the hearing in August 2019 Associate Judge Sargisson ordered that the caveat would lapse on 20 September 2019.1
[7] The summary judgment hearing took place in November 2019 and on 4 December 2019 Associate Judge Sargisson entered summary judgment as to liability against both defendants (the Judgment).2
1 Moeke v South Waikato District Council [2019] NZHC 2282, (2019) 20 NZCPR 385.
2 Moeke v Raukawa Iwi Development Ltd [2019] NZHC 3166, (2019) 21 NZCPR 493.
The Law
[8]Rule 4.56(1)(b) of the High Court Rules 2016 provides:
4.56 Striking out and adding party
(1)A Judge may, at any stage of a proceeding, order that —
…
(b) the name of a person be added as a plaintiff or defendant because —
(i)the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
Submissions for Mr Moeke
[9] Mr Ken Patterson, for Mr Moeke, submits that the application is for the joinder of the directors of Raukawa who participated in the decision to defraud Mr Moeke, the councillors, Mayor and Chief Executive of the Council who caused the Council to perpetrate the fraud against Mr Moeke, and the respective solicitors for Raukawa and the Council who implemented the fraud by transferring the property.
[10] Mr Patterson submits that Raukawa and the Council are corporate entities and they are controlled by natural persons, have natural persons as employees and natural persons as solicitors implementing the transaction. He submits that the Judgment was given in contract and tort against Raukawa, and tort against the Council. He submits that the draft second amended statement of claim Mr Moeke proposes to file, if the joinder application is successful, simplifies matters by confining the amended claim against the additional defendants to a claim in tort.
[11] Mr Patterson submits that r 4.56 provides that persons may be added “at any stage of the proceeding” and submits that this includes after judgment relying on Sim’s Court Practice.3 Mr Patterson submits the primary basis for joinder in this case is that the proposed additional defendants ought to have been joined because they were the
3 Laura O’Gorman (ed) Sim’s Court Practice (online ed, LexisNexis) at [HCR 4.56.6], citing
McDonald v Simmonds (1994) 8 PRNZ 12 (HC).
natural persons who caused and/or implemented the fraud against Mr Moeke and are therefore liable as joint tortfeasors.
[12] Mr Patterson submits the proposed additional defendants are persons against whom it is alleged there is a right of relief arising out of the same matters as those canvassed in the Judgment. He submits that the proposed additional defendants were not identifiable at the time the proceeding was commenced and the full picture has emerged only during the proceeding.
[13] Mr Patterson submits that in the circumstances there is a prima face case for joinder of the proposed additional defendants. He submits that the starting point for the exercise of the discretion under r 4.56 to order joinder is that the interests of justice require the plaintiff to be able to bring a proceeding against a person against whom they allege they have a right of relief. Mr Patterson submits that Mr Moeke is in a stronger position than the usual plaintiff who simply makes an allegation, as the Judgment has already established fraud. He submits that if the additional proposed defendants are privies, as the draft amended statement of claim alleges, the added defendants will be bound by the findings in the Judgment against Raukawa and the Council.
[14] Mr Patterson then turns to deal with the grounds set out in the notices of opposition filed by the proposed additional defendants.
Notices of opposition
[15] Mr Patterson’s submissions deal with each of the grounds of opposition separately.
Contrary to objective of securing just, speedy, and inexpensive determination of a proceeding
[16] Mr Patterson submits that determination of the proceeding will be delayed to the extent the joinder application must be determined, but that delay has already occurred. He submits there will be a short delay if new defendants are added as the plaintiff will apply for summary judgment against them on liability, and they may wish
to defend the application, although Mr Moeke’ assertion is that they will be estopped from doing so. Mr Patterson submits that the new defendants may wish to make interlocutory applications, but these will be dealt with in tandem with the existing interlocutory applications already filed by the Council. He submits that joinder of a new defendants will increase Mr Moeke’s expenses but will not increase the expenses of Raukawa or the Council in any significant way, as their expenses have largely already been incurred, or would be incurred anyway in defending the quantum proceeding.
Are the first and second defendants likely to have cross-claims against some of the third to seventh defendants?
[17] Mr Patterson acknowledges that such claims may well exist, but should not be raised as a ground of opposition to joinder. He submits that Raukawa and the Council must have known from the time they were served with the proceeding that they should be seeking indemnity from the persons who were responsible for causing them to conspire. He submits that, unlike Mr Moeke, they must have known who caused them to act to implement the conspiracy to defraud, and why they did it. He submits that it is disingenuous to advance the possibility of cross-claims as a defence to the joinder application.
Liability of third to seven defendants is not fixed in the summary judgment
[18] Mr Patterson submits this proposition is incorrect if the proposed additional defendants are estopped from disputing the summary judgment. He submits that Mr Moeke will apply for summary judgment on liability against the new defendants when the second amended statement of claim is served.
Local authorities must indemnify members
[19] Section 43 of the Local Government Act 2002 provides for members of a local authority to be indemnified in respect of costs and damages from the civil liability “if the member was acting in good faith and in pursuance (or intended pursuance) of the responsibilities or powers of the local authority”. Mr Patterson submits that engaging in a conspiracy to defraud is not within responsibilities or powers of a local
authority and therefore the indemnity argument is not a good argument to oppose the joinder application.
Estoppel
[20] Mr Patterson then turns to the argument that the proposed additional defendants will be estopped from resisting liability findings under a summary judgment application by the findings in the Judgment. This is pleaded at [26] to [29] of the proposed second amended statement of claim.
[21] Mr Patterson submits that the elements of estoppel are made out against the proposed additional defendants. He submits that the Judgment was a final decision of a Court of competent jurisdiction and the cause of action now proposed to be advanced against the proposed additional defendants is identical to the cause of action on which the Judgment was given against Raukawa and the Council. He submits the issues raised in the draft second amended statement of claim are identical to the issues determined by the Judgment, the only difference being the identity of the parties.
[22] Mr Patterson submits that the res judicata estoppel binds not only the parties to the earlier decision but also privies of the party. He refers to Shiels v Blakely which, he submits, holds that for there to be privity for the purposes of res judicata estoppel, it must be shown such a union or nexus, such a community or mutuality of interest, such an identity between a party to the first proceeding and the person claimed to be estopped in the subsequent proceeding, that to estop the latter will produce a fair and just result having regard to the purposes of the doctrine of estoppel and its effect on the party estopped.4
[23] Mr Patterson submits that conspiracy would not have existed and been implemented without the involvement of the proposed additional defendants. He submits that the requisite union or nexus, community or mutuality of interest, and the identity between Raukawa and the Council and the proposed additional defendants exists, such that to estop the latter will produce a fair and just result having regard to
4 Shiels v Blakely [1986] 2 NZLR 262 (CA) at 268.
the purposes of the doctrine of estoppel and its effect on the proposed additional defendants.
[24] Mr Patterson submits that if the proposed additional defendants are estopped, a trial on liability on the merits will not be needed. If the proposed additional defendants do not accept they are estopped, then the issue will need to be determined.
[25] In conclusion, Mr Patterson submits that as the Court has jurisdiction to join the proposed additional defendants, as the threshold for jurisdiction in r 4.56(1)(b) is met, the Court should exercise its discretion in favour of ordering joinder. He further submits that had the full circumstances been known to Mr Moeke, the proposed defendants could have been joined at the outset. He submits joinder will serve the interests of justice as the proposed additional defendants were always in jeopardy of being sued and they could even now be the subject of a separate proceeding. He submits there is no injustice to Raukawa and the Council in allowing the proposed defendants to be joined as, had they been acting in the interests of shareholders and ratepayers respectively, the proposed additional defendants would have been joined soon after the proceeding was commenced.
Submissions in opposition for Raukawa
[26] Richard Fowler KC, on behalf of Raukawa, submits that the objective of the High Court Rules is the “just, speedy, and inexpensive determination of any proceedings”.5 He submits that the application for joinder is:
(a)not just — judgment has already been obtained and Mr Moeke intends to “straitjacket” the proposed additional defendants by arguing estoppel;
(b)not speedy — the proceedings have taken nearly three years to this point and immediately ahead will be further statements of defence, discovery, cross-claims and contribution issues;
5 Rule 1.2.
(c)not inexpensive — joinder adds a self-evident complexity.
[27] Mr Fowler submits that joinder adds nothing to the proceedings as whatever Mr Moeke’s loss is, it would overlap on a joint and several tortfeasor basis with the eventual quantum awarded against the two present defendants (or, if not, the awards would very substantially overlap). Joinder adds nothing, as the plaintiff has already succeeded on tortious conspiracy.
[28] Mr Fowler submits that the striking feature of this application is that there has already been a liability judgment. He submits that under r 4.56(1)(b), only two grounds for joinder are stated:
(i)the person ought to have been joined; or
(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.
[29] Mr Fowler submits the second ground cannot apply as the proceeding has already been adjudicated on and determined. The first ground is the only option potentially available for the application — i.e. the person ought to have been joined.
[30] Mr Fowler submits that the joinder application is too late, being post-judgment. He submits that allowing joinder post-judgment creates problems:
(a)it permits a strategy whereby a plaintiff secures success on limited, cleaner issues and then, if they win, extend the list of defendants;
(b)creates complications over the issue of estoppel in respect of existing liabilities. Indeed here, Mr Moeke is seeking to estop the proposed additional defendants by relying on existing liability findings in the Judgment.
[31] Mr Fowler submits no cogent explanation has been offered as to why the proposed additional defendants were not joined at the outset. As to Mr Moeke’s submission that the proposed additional defendants were “not identifiable at the time
the proceeding was commenced, and the full picture emerged only during the proceeding”, Mr Fowler submits:
(a)the identity of the directors of Raukawa was a matter of public record;
(b)the identity of the Mayor, Chief Executive and councillors of the Council was a matter of public record;
(c)the solicitors acting for Raukawa and the Council respectively would have been readily ascertainable under the land transfer registration system.
For the above reasons, Mr Fowler submits the application should be dismissed.
Submissions in opposition for the Council
[33] Kate Cornegé, for the Council, submits that joinder of the proposed additional defendants would be unnecessary and unjust, and would be contrary to the objective of securing the just, speedy, and inexpensive determination of the proceedings.
[34] As to joinder occurring after judgment, Ms Cornegé casts doubt on Mr Moeke’s reliance on Sim’s Court Practice as authority for the proposition that joinder can take place after judgment.6 She submits it is only in special circumstances that joinder of the defendants is ordered after judgment has been entered. She cites Farmers’ Milking-Machine Co Ltd v Knapp, where the plaintiff obtained judgment and an injunction against the defendant, but it transpired that the defendant was no longer engaged in milking machine dealing.7 The Court refused to grant joinder of the milking machine dealer company, a solicitor, and a manager instead, as their liability had not been fixed.8 The Court held that the proposed defendants were “complete strangers to the action” and had not been given the opportunity to be heard.9
6 O’Gorman, above n 3, at [HCR 4.56.6].
7 Farmers’ Milking-Machine Co Ltd v Knapp [1928] NZLR 305 (SC).
8 At 307.
9 At 307.
[35] Ms Cornegé submits that the only case in which joinder of the defendant was ordered after judgment is McDonald v Simmonds.10 In that case, one of the first two defendants, who was sued in his capacity as trustee of the estate, had not been aware of the proceedings until after judgment was issued. He was also a beneficiary of the estate, but was not joined in that capacity. The Court considered there was a real likelihood that the other first defendant, a solicitor who represented both first defendants, might not have adequately pursued arguments in applications in the proceeding which could have benefited the beneficiaries, as this could have disadvantaged him personally.11 The judgment was recalled, the beneficiaries were added as third defendants, and a new trial was ordered.12 Ms Cornegé submitted this is very different from the current situation where the Judgment has not been recalled and the liability findings have already been made.
[36] Ms Cornegé submits that Mr Moeke’s delay in applying for joinder is a relevant consideration in the exercise of the discretion under r 4.56 and refers to the decision in Hallam v Ryan.13 Ms Cornegé submits that there has been a delay of almost three years between Mr Moeke commencing the proceedings and applying to join the proposed additional defendants. She makes similar submissions to Mr Fowler that the proposed additional defendants were easily identifiable at the outset of the proceeding.
[37] Ms Cornegé submits that the addition of the proposed defendants will cause significant disruption to the litigation and has the potential to increase the time to bring it to a close. The liability of the proposed additional defendants can only be determined by way of trial or summary judgment hearing. Cross-claims between defendants may be filed and further interlocutory applications by many of the new defendants are likely, such as security for costs, defendants’ summary judgment, applications for better particulars and discovery. Ms Cornegé submits the existing outstanding interlocutory applications can be dealt with promptly and the same cannot be said of the hypothetical applications of any of the 15 proposed additional defendants.
10 McDonald v Simmonds (1994) 8 PRNZ 12 (HC).
11 At 17–18.
12 At 19.
13 Hallam v Ryan (1989) 3 PRNZ 132 (HC).
[38] Ms Cornegé submits that adding the proposed additional defendants is not in the public interest, at least in respect of the Mayor and Council members who are proposed additional defendants. She points to s 43 of the Local Government Act 2002 and submits that the proposed fourth defendants are all indemnified by the Council. Accordingly, joining the proposed additional defendants would increase the costs borne by the ratepayers in the proceedings, which is not in the public interest.
[39] Finally, Ms Cornegé submits that joining further defendants is of little benefit to Mr Moeke. She submits the largest part of the quantum Mr Moeke seeks is general damages of $1,000,000 and even if he were successful in obtaining the full quantum he seeks from the proposed additional defendants, the only difference is that his exemplary damages award is for $415,000 instead of $40,000. Ms Cornegé submits an exemplary damages award of $415,000 even against 17 defendants must be regarded as unlikely in New Zealand.
Submissions in opposition from some of the proposed named fourth defendants and the fifth defendant
[40] David Nielsen for some, but not all, of the proposed additional fourth defendants, being the Mayor and councillors of the Council, made submissions on behalf of Jenny Shattock (Mayor), Jeff Gash, Thomas Lee and Arama Ngapo- Lipscombe (some of the proposed fourth defendants), and the proposed fifth defendant, Benjamin Eric Smit.
[41] Mr Nielsen submits that the specific role of each of the proposed fourth defendants he represents is decisive in determining whether there is any basis for them to be joined. He then deals with the position of each of the proposed fourth defendants, whom he represents, at the relevant Council meeting.
Jenny Shattock (Mayor)
[42] Mr Nielsen submits that Ms Shattock did not vote at the meeting. The minutes record the councillors who voted, and there is no reference to Ms Shattock voting.
Jeff Gash and Thomas Lee
[43] Mr Nielsen submits that the minutes confirm that Messrs Gash (who was on leave of absence) and Mr Lee were absent from the meeting when it was resolved that the Council purchase the property.
Arama Ngapo-Lipscombe
[44] Mr Nielsen submits the minutes confirm that Ms Arama Ngapo-Lipscombe abstained from voting due to a conflict of interest.
Benjamin Eric Smit
[45] Mr Nielsen submits that Mr Smit, as Chief Executive of the Council at the time, is indemnified by the Council in that capacity. He submits that in addition to the indemnity that exists because of the employer/employee relationship, Mr Smit has been separately indemnified under a deed of indemnity with the Council for any costs or damages arising out of this matter. Mr Nielsen submits that although the plaintiff seeks to join Mr Smit to increase the quantum of his claim, there is no prospect of that being achieved if Mr Smit is joined because of the indemnity.
[46] In conclusion, Mr Nielsen submits that where the proposed fourth defendants were not present at the meeting, did not vote at the meeting or are indemnified, there is no basis for the proposed defendants to be joined or that their presence may be necessary to adjudicate on and settle the questions involved in the proceeding. Accordingly, he submits the application should be dismissed.
Submissions on behalf of Mr Moeke in response to the submissions in opposition
[47]Mr Patterson deals with each set of submissions filed in opposition in turn.
Reply to Raukawa’s opposition to the joinder application
[48] Mr Patterson, in response to Raukawa’s submissions in opposition, makes the following points:
(a)in answer to the submission that liability has already been found for tortious conspiracy, he submits that the issue of quantum is yet to be decided;
(b)the proceedings have taken considerable time but that is almost entirely due to the behaviour of Raukawa and the Council.
Reference to initial attempts to resolve the matter with the Council and the time taken to resolve the caveat proceedings
[49] Mr Patterson submits that COVID-19 interceded, and Mr Moeke had a motor vehicle accident which caused delays.
Reply to the Council’s submissions in opposition
[50]Mr Patterson again focuses on delays in the proceeding and points to:
(a)the circumstances of Mr Moeke’s accident of which the Council were advised but continued their proceedings for discovery;
(b)discovery sought by the Council;
(c)the Council’s refusal to provide disclosure in relation to claimed solicitor/client privileged communications;
(d)delay in setting down the judicial settlement conference.
[51] Mr Patterson refers to public interest and indemnification of the proposed fourth defendants under s 43 of the Local Government Act, and submits that because of the fraud by the proposed fourth defendants, s 43 should not apply.
[52] Mr Patterson also submits that the fourth defendants were not joined at the outset because of difficulty in obtaining answers about who attended the meeting and who voted in favour of the proposal to purchase the property.
Reply to the proposed fourth defendants’ submissions in opposition
[53] Mr Patterson then reviews the involvement of each of the proposed fourth defendants and concludes:
(a)in relation to Ms Shattock, the Mayor, she was involved in the decision and should be joined;
(b)in relation to Mr Gash and Mr Lee, Mr Gash was involved in the proposal and should be joined, but Mr Lee was not and has been excluded from the amended application for joinder;
(c)Ms Arama Ngapo-Lipscombe was involved and should be joined;
(d)Mr Smit was involved and should be joined.
[54] In conclusion, Mr Patterson submits that Mr Moeke seeks to join all councillors of the Council who attended the meeting on 6 December 2018. In particular in the amended application for joinder, Mr Van Rooijen has been added as one of many proposed fourth defendant on the basis that it is alleged he voted in favour of the proposal.
Analysis
[55]Matters to be determined in this judgment are:
(a)whether the threshold objective test for the Court’s jurisdiction to order joinder, under either subparagraph (i) or (ii) of r 4.56(1)(b), has been met?
(b)if the jurisdictional threshold is met, should the Court exercise its discretion to order joinder?
[56]I deal with each of these in turn.
Whether the threshold objective test for the Court’s jurisdiction to order joinder, under either subparagraph (i) or (ii) of r 4.56(1)(b), has been met?
[57] As submitted in submissions opposing the application, in my view only subparagraph (i) under r 4.56(1)(b) is relevant. As to subparagraph (ii), as submitted in opposition, this subparagraph cannot be relevant as the issues as to liability have already been adjudicated on and determined in relation to these proceedings. The question therefore is solely whether the proposed additional defendants ought to have been joined in the proceeding.
[58] In my view, the important consideration in relation to this application is that the Judgment does not consider the liabilities of the individual officers, trustees or elected members of the Council in tort, nor the liability of solicitors in the conspiracy. In other words, the Judgment did not consider the liability of the proposed additional defendants. While Mr Patterson has argued that the proposed additional defendants are privies to Raukawa and the Council respectively, and therefore should be estopped from denying the tortious conspiracy for fraud liability findings in the Judgment, this is not established and a summary judgment application or trial is necessary to establish any such liability. Such a proceeding is effectively a new proceeding and is not part of establishing the quantum of Raukawa and the Council’s liability in this proceeding. Accordingly, there is no clear basis on which the proposed additional defendants “ought” to be joined until their individual liability has been established.
[59] Consequently, it is my view that the jurisdictional test in r 4.56(1)(b) has not been met and accordingly the application should be dismissed. In case I am wrong in this conclusion, I go on to consider whether, if the jurisdictional threshold has been met, the Court should exercise its discretion to order joinder.
If the jurisdictional threshold is met, should the Court exercise its discretion to order joinder?
[60] I am of the view that even if the jurisdictional threshold for the Court to order joinder is met, the Court should not exercise its discretion to order joinder in this case. The reasons for this are:
(a)The joinder of the proposed additional defendants has the potential to cause significant disruption to the litigation and increase the time to bring it to a close. As has been noted at [58], the liability of the proposed additional defendants can only be determined by way of a trial or summary judgment hearing. Cross-claims between the defendants may be filed and further interlocutory applications by any of the new defendants may be filed including security for costs, defendants’ summary judgment and applications for better particulars and discovery. In my view, the proceedings to determine the quantum following the Judgment determining liability given on 4 December 2019 have been on foot for a lengthy period and should be concluded as soon as possible.
(b)The delay in bringing the joinder application counts against Mr Moeke’s application. I accept submissions filed on behalf of Raukawa and the Council that the proposed additional defendants were largely, if not completely, identifiable at a much earlier stage.
(c)While counsel for Mr Moeke has raised whether or not the proposed fourth defendants should be indemnified by the Council under the Local Government Act, counsel for the Council has submitted that the Council has accepted that s 43 applies to this proceeding and these proceedings are not the proper forum for any challenge to that position.
(d)Any application for joinder is too late and the Judgment has already been delivered. I agree with Ms Cornegé’s submission that joinder after a judgment has been delivered should only be granted in exceptional circumstances, such as those that existed in McDonald v Simmonds, where the judgment was recalled.
Orders
[61]I make the following orders:
(a)Mr Moeke’s application for joinder of the proposed third defendants, fourth defendants, fifth defendant, sixth defendant and seventh defendant is dismissed.
(b)As Raukawa and the Council have been successful parties, costs should follow the event and costs and disbursements are awarded to Raukawa and the Council against Mr Moeke on a 2B basis.
…………………………….. Associate Judge Taylor
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